In one way or another we have all encountered situations we may term as “Constituting Nuisance” but then what is Nuisance?
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What is Nuisance?
In ordinary parlance, Nuisance may be termed a disturbance, an inconvenience or obstruction from the quite enjoyment of ones environment.
According to Black’s Law Dictionary 9th Edition, Nuisance is defined as a condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property.
Nuisance was also defined by the Supreme Court in the case of IPADEOLA & ANOR. v. OSHOWOLE. (1987) LPELR-1531 (SC) to be;
“an act or omission which is an interference with or annoyance to a person in the exercise or enjoyment of:
- a right belonging to him as a member of the public, when it is public nuisance;
- his ownership or occupation of land or some easement, profit or other rights used or enjoyed in connection with land, when it is a private nuisance.”
When is Nuisance Actionable?
Despite the broad definition given explaining Nuisance, not all situations that constitute Nuisance is actionable under Tort’s law (A Tort is a breach of duty which has been imposed by law). The next question one may ask is; what then may be said to legally constitute Nuisance?
In the case of ADEDIRAN & ANOR v. INTERLAND TRANSPORT LTD (1991) LPELR-88(SC), the Supreme Court held that;
“Nuisance is an act of commission tending to interfere with, disturb or annoy a person or persons in the exercise or enjoyment of a right belonging to that person or persons; if the person whose right is so infringed is an individual, the nuisance is a private one, but when it affects the public or a class of the public, it is then a public nuisance, whereas the private nuisance is within the competence of the victim to prosecute civilly, the public nuisance is a criminal matter for prosecution by the Attorney-General.”
Types of Nuisance
From the case mentioned above, it is clear that there are two types of Nuisance;
1. Public Nuisance;
2. Private Nuisance.
The tort of private nuisance essentially arises wherever an individual takes up residence. It is important to understand that acts taken on ones land may negatively affect the private and peaceful enjoyment of the land of another individual.
In other words, private nuisance involves the use of one’s property in a manner that causes significant harm to another individual’s use or enjoyment of their private land.
The essence of liability for private nuisance is an unreasonable interference with another’s use or enjoyment of land and, in assessing what is reasonable, the courts will try to balance each party’s right to use the land as they wish.
In other words, Private nuisance, unlike Public nuisance, is designed to protect the interest of owners or occupiers of land from any form of impediment to the enjoyment of their land that may arise as a result of another party’s substantial interference.
Categories of Private Nuisance
Private nuisance may be classified into three categories, namely:
- Physical injury to plaintiff’s property: e.g., where the plaintiff’s harm is affected by the fumes from the defendant’s factory.
- Substantial Interference with the plaintiff’s use and enjoyment of his land: for example, when the loud sound of machines emanating from the defendant’s factory can be heard in the plaintiff’s residence.
- Interference with easements and profits: e.g., where the defendant wrongfully obstructs the plaintiff’s right of way or right to light.
What to Prove when Suing under Private Nuisance
For a Claimant to enjoy the backing of Law under Private Nuisance he/she most prove:
1. That an interference with the enjoyment of land has occurred;
- That such interference is a continuing situation and not a one-off incident;
- Must interfere with the use of land and not merely “things of delight” such as views;
- If allowed to continue, could result in naturally occurring hazards;
- The defendant is aware of it and has failed to take reasonable precautions.
2. That the interference was unreasonable. For instance; caused out of malice;
3. Damage was caused by the interference. It need not be physical damage, inconvenience or discomfort can be enough, the claimant must prove the interference caused the damage.
Public nuisance is a crime, but in certain situations, can also create a cause of action in tort. It applies where a nuisance ‘materially affects the reasonable comfort and convenience’ of a class of people. Claimants must prove they have suffered special damage, other than that suffered by the affected group.
Public nuisance occurs when a person by his action or inaction causes inconvenience to the general public. This could be in the form of blocking the road, the release of fumes from a factory, the making of loud noise and so on. Public nuisance is generally a crime under common law, it is actionable only by the Attorney General (this has been made void by the provision of section 6(6)(b) of the 1999 Constitution).
In Nigeria, public nuisance has been made criminal by the provision of S.234 of the Criminal Code.
Section 234 of the Criminal Code Act in Nigeria:
Any person who‐
(a) obstructs any highway, by any permanent work or erection thereon or injury thereto, which renders the highway less commodious to the public than it would otherwise be; or
(b) prevents the public from having access to any part of a highway by an excessive and unreasonable temporary use thereof, or by so dealing with the land in the immediate neighbourhood of the highway as to prevent the public from using and enjoying it securely; or
(c) does not repair a highway which he is bound to repair; or
(d) does not repair a bridge which he is bound to repair; or
(e) willfully diverts or obstructs the course of any navigable river so as to appreciably diminish its convenience for purposes of navigation; or
(f) does any act not warranted by law, or omits to discharge any legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to the public,
is guilty of a misdemeanor and is liable to imprisonment for two years.
It is immaterial whether the act complained of is convenient to a larger number of the public than it inconveniences, but the fact that the act complained of facilitates the lawful exercise of their rights by a part of the public, may show that it is not a nuisance to any of the public.
The owner of a vessel wrecked in a navigable river is not guilty of a common nuisance because he does not remove it.
An individual can bring an action to court against a public nuisance, when he has suffered ‘particular damages’ by the interference. This ‘particular damages’ must be such that is over and beyond the ordinary damages suffered by other members of the society.
This was decision of the Court in Amos vs. Shell BP Nigeria Ltd, it was held by the court that;
“a private individual would have a right of action when it comes to public nuisance if he can establish before the court that by the defendant’s action, he has suffered damage over and above other members of the society“.
Remedies awarded to a claimant in the tort of Nuisance both public and private are mostly injunctions and damages.
Differences between Public and Private Nuisance
Differences between Public and Private Nuisance
From the foregoing, let us now consider some differences between Public and Private Nuisance.
- A public nuisance affects the public generally, while a private nuisance affects a party privately.
- Public nuisance is a crime, and a tort when particular damage is proved by an individual. However, private nuisance is solely tortious.
- Public nuisance is actionable by the Attorney General, while private nuisance is not.
- To succeed in Private Nuisance, the plaintiff must have an interest in the land. Such an interest is unnecessary in an action arising under public nuisance.
In Nigeria where we encounter situations that constitute Nuisance, it is better to be armed with the law to know that which is actionable and entitle one to the remedies accruing to an aggrieved party.
Written by Veronica Ekesiobi